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2016 DIGILAW 282 (ALL)

Mohan Lal Arora v. State of U. P.

2016-01-20

SUNITA AGARWAL

body2016
JUDGMENT Sunita Agarwal, J. – Rejoinder Affidavit filed today be taken on record. 2. By means of the present writ petition, the petitioner is challenging the order dated 30.03.2011 passed on an application filed by him under Section 16(5) of U.P. Act No.13 of 1972 (hereinafter referred to as 'The Act'). Another order dated 23.04.1992 passed by the Rent Control & Eviction Officer declaring vacancy is also under challenge. 3. The brief facts relevant to decide the controversy in hand are that in the year 1991 an application intimating vacancy was filed by one Smt. Narendra Kaur, who had purchased the disputed property in the year 1997. On this application, the report of the Rent Control Inspector was called, who had submitted his report on 13.02.1991. On the basis of this report, the vacancy was declared by order dated 23.04.1992. A perusal of the order dated 23.04.1992 indicates that on the date of inspection, the premises in question was found locked. It is also mentioned in the order that the R.C.I in his report had stated that the tenant Sukhram Das was living with his wife in this premises and his heirs were living elsewhere. 4. It was, further, recorded by the Rent Control Inspector that Sukhram Das died on 14.11.1991, and as such no notice could be served upon him. It appears that after submission of R.C.I report, an affidavit dated 23.04.1992 was filed by the then landlord to submit that the tenant had died and no other family member was in occupation, therefore, the vacancy had occured. Resultantly, the accommodation at the first floor having two rooms, verandah, latrine, bathroom and store of House No.119/39-A, Naseemabad, Kanpur was declared vacant. It appears that after declaration of vacancy on 23.04.1992, the premises in question was released in favour of Smt. Narendra Kaur by order dated 30.04.1992. Thereafter, it was sold to Sardar Ratan Deep Singh and Sardar Jagpreet Singh who in turn sold it to Sri Rajeev Kumar Gupta and Smt. Anju Gupta namely respondent nos. 4 & 5. 5. After the purchase, Sri Rajeev Kumar Gupta filed an application under Section 16(4) of the Act in the year 2008 for execution of the order of release passed in favour of Smt. Narendra Kaur. This application was dismissed for want of prosecution and finally restored on 11.11.2010. 4 & 5. 5. After the purchase, Sri Rajeev Kumar Gupta filed an application under Section 16(4) of the Act in the year 2008 for execution of the order of release passed in favour of Smt. Narendra Kaur. This application was dismissed for want of prosecution and finally restored on 11.11.2010. The petitioner Mohan Lal Arora who was son of the sitting tenant Sri Sukhram Das filed objection to the execution application filed by Sri Rajeev Kumar Gupta. In his objection dated 03.11.2008, he had categorically stated that the premises in question has never fallen vacant and he had paid rent to Sardar Ratan Deep Singh and Sardar Jagpreet Singh who were landlords at that point of time. Simultaneously on application under Section 16(5) of the Act was filed by the tenant for recall of the order of release on the ground that he is lawful occupant of the building in question and the order of release was not passed in accordance with Clause (b) of sub-section (1) of Section 16 of the Act. This application was rejected vide order dated 30.03.2011 on the ground of delay. 6. Challenging the order of rejection of this application and the order of vacancy, submission of learned counsel for the petitioner is that the vacancy order dated 23.04.1992 was an ex parte order and, moreover, it was never executed. No notice was served upon the tenant or his heirs before declaration of vacancy, the vacancy was not notified and as such the petitioner was not aware of the order of vacancy which was passed after death of his father. The petitioner had inherited the tenancy from his father and was legal occupant of the premises in question. 7. He, further, submits that as far as the order of release is concerned, it was passed on the application made by Smt. Narendra Kaur the then landlady considering her need for the tenanted accommodation. She never got it executed and admittedly the vacant possession of the premises was never handed over to her. 8. The respondent nos. 4 & 5 are the subsequent purchasers and, therefore, they have no right to get the release order executed. 9. At the best they could have established their own need for the premises in question. The release order dated 30.04.1992 has lost its efficacy with the sale of the premises in question. 10. 8. The respondent nos. 4 & 5 are the subsequent purchasers and, therefore, they have no right to get the release order executed. 9. At the best they could have established their own need for the premises in question. The release order dated 30.04.1992 has lost its efficacy with the sale of the premises in question. 10. However, it is also on record that the release application filed by them was also rejected vide order dated 30.03.2011. 11. Learned counsel for the respondent no.4 & 5, however, submits that once the vacancy is declared, the tenant or his heirs will be unauthorized occupants. The vacancy order has become final between the parties i.e. the sitting tenant and the erstwhile landlord. It was not open for the petitioner Mohan Lal Arora to challenge the order of vacancy. After the declaration of vacancy the release is a question between the landlord and the Rent Controller Authority. The outgoing tenant or unauthorized occupant had no right to challenge the order of release. 12. This apart, Sri Mohan Lal Arora, the petitioner was not residing in the premises in question. He was residing in a House No.119/82-B Darshanpurwa, Naseemabad, Kanpur Nagar which was owned by his wife Smt. Kailash kumari. Sri Mohan Lal Arora, the petitioner also owned one more house having municipal No.119/73-F Darshanpurwa, Naseemabad, Kanpur Nagar. Photocopies of the house tax receipts issued by Nagar Nigam, Kanpur Nagar in the name of Smt. Kailash Kumari dated 21.09.2011, 26.01.2003, 22.01.2008 have been filed as Annexure Nos.1, 2 & 3 to the counter affidavit in the present writ petition. 13. With the support of these documents, the submission of learned counsel for the respondents is that the vacancy had occurred in the premises in question and Sri Mohan Lal Arora, the petitioner had no right to occupy this premises being unauthorized occupant. 14. During the pendency of the present writ petition, Sri Mohan Lal Arora died and one of his son Manoj Arora has been substituted in his place, who has no right to maintain this petition. 15. Having heard learned counsel for the parties and perused that record, this Court finds that the petitioner Mohan Lal Arora, was admittedly son of Sukhram Das the sitting tenant of the premises in question. 15. Having heard learned counsel for the parties and perused that record, this Court finds that the petitioner Mohan Lal Arora, was admittedly son of Sukhram Das the sitting tenant of the premises in question. An application for release intimating vacancy under Section 16(1)(b) was moved by the landlady Smt. Narendra Kaur in the year 1991 with the assertion that the premises in question was kept locked by the sitting tenant Sukhram. The order dated 23.04.1992 though records the report dated 13.02.1991 of the Rent Control Inspector but it does not reveal that before inspection of the premises in question, any notice was served upon the sitting tenant who was admittedly alive at that point of time. The sitting tenant Sukhram Das died on 14.11.1991 i.e. much after the inspection of the premises in question. 16. Further, the order dated 23.04.1992 also records that no notice was served upon the tenant as he had died during the pendency of the proceedings. The vacancy was declared on account of death of the tenant on the basis of affidavit of the landlord dated 23.04.1992 that his family members did not reside in the premises in question and they were living separately. The detail of heirs of the sitting tenant has not been recorded in the order. It appears that no effort has been made by the Rent Control Officer to serve notice upon any of the heirs of the sitting tenant. Because of death of the sitting tenant, the vacancy could not have been declared behind the back of his heirs who could have put their claim that they were residing in the house in question and had inherited the tenancy. Moreover, after declaration of vacancy, the release order was passed on 30.04.1992. It does not reflect from the record that before passing the order of release the vacancy was notified in accordance with the provisions of Rule 9(3) of the Rules, 1972. 17. Thus, this Court comes to an irresistible conclusion that the provisions of Rule 8 and 9 i.e. for ascertainment of vacancy and the procedure for passing the order of release have not been followed with regard to the premises in question. 18. This apart, the vacancy or the release order was never put to execution by the erstwhile landlady and the premises was sold. 19. 18. This apart, the vacancy or the release order was never put to execution by the erstwhile landlady and the premises was sold. 19. The categorical submission of the petitioner namely, Mohan Lal Arora was that he had continued to live in the premises in question. Now after his death the assertion is that his son has inherited the tenancy and is living in the accommodation in question. 20. After purchase in the year 2008 for the first time an application for execution of the release order dated 30.04.1992 was filed by the current landlords. This application was dismissed for want of prosecution and could only be restored on 11.11.2010. 21. Sri Mohan Lal Arora filed an application on 23.03.2011 for review of the order of release under Section 16(5) of the Act after the execution case was restored. 22. These facts makes it evident that the vacancy order was never brought to the knowledge of the heirs of the sitting tenant, Sukhram Das. It was an ex parte order declared after death of the sitting tenant behind the back of his heirs who had inherited the tenancy. The Rent Control & Eviction Officer, therefore, had committed illegality in rejecting the review application filed under Section 16(5) of the Act on the ground of delay. 23. Now, on the merits of the vacancy order, in light of the observation made above that the procedure as prescribed under Rule 8 and 9 has not been followed, the vacancy order dated 23.04.1992 cannot be sustained. 24. The order of release dated 30.04.1992 automatically falls. 25. So far as the present landlords are concerned they sought to execute the order of release passed in favour of the erstwhile landlady. The release order has been passed on the bona fide need of the then landlady and in case the purchasers need the premises in question they have to establish their own bona fide need. 26. Learned counsel for the respondent nos. 4 & 5 insists that the records establish Mohan Lal Arora, the son of the sitting tenant Sukhram Das was living elsewhere and he had acquired the house in the name of his wife. It would be open for the respondents to initiate appropriate proceedings in accordance with law against his son Manoj Arora who has inherited tenancy. 27. Resultantly, the orders impugned dated 23.04.1992 & 30.03.2011 are hereby quashed. 28. It would be open for the respondents to initiate appropriate proceedings in accordance with law against his son Manoj Arora who has inherited tenancy. 27. Resultantly, the orders impugned dated 23.04.1992 & 30.03.2011 are hereby quashed. 28. The writ petition is allowed. No order as to cost. Petition allowed.